Case 3:13-cv-01110-DRD Document 69 Filed 09/30/13 Page 1 of 23 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO
Maritza Casiano-Cains Plaintiff Civil No. 13-1110 (DRD) v.
College of Public Performance Producers, et. al. Defendants
OMNIBUS OPINION AND ORDER
The instant case stems from a constitutional challenge of the Puerto Rico College of Public
Performance Producers Act, Law No. 113 of 2005, 15 L.P.R.A. §§ 2012 - 2020 (“COPEP Act”) and a request of declaratory judgment and injunctive relief. Plaintiff, a public performance producer, brought suit against the College of Public Performance Producers (“COPEP”), its current and former officials, a private entity that directly competes with of Plaintiff, the Commonwealth of Puerto Rico, and the Secretary of Justice, Secretary of Treasury and Governor of Puerto Rico. Plaintiff alleges that the COPEP Act violates the Commerce Clause and the First and Fourteenth Amendments of the U.S. Constitution as to its mandatory membership requirement; the allegedly differential treatment of “public performance producers established in Puerto Rico”; overbreadth and vagueness as to the activities subject to penalties under the COPEP Act; and the imposition of administrative and criminal penalties (Docket No. 5). Plaintiff requests that the COPEP Act be declared invalid and adding that the Court enjoins enforcement power over the same. Plaintiff further seeks damages for the monopolistic and anti-competitive acts allegedly perpetrated by COPEP, Mojena, TM
Entertainment, Zapata, and Mellado; the selective prosecution allegedly perpetrated by COPEP,
Mojena, Zapata and Mellado; the tortious interference with at least one contract allegedly perpetrated by Mojena, Zapata, and Mellado; and for being the the victim of defamation by Mojena,
Zapata and Mellado.
Pending before the Court are Plaintiff’s request for preliminary and permanent injunction
(Docket No. 6) and Defendants’ motions to dismiss (Docket Nos. 40, 42, 53, 58, and 59). Case 3:13-cv-01110-DRD Document 69 Filed 09/30/13 Page 2 of 23
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff has been a producer of public events established in Puerto Rico for various decades.
She obtained a license to practice the profession of public performance promoter and also became a member of the COPEP when the statutes imposing such requirements were enacted.1 Both requirements are currently mandatory to all producers of public events established in Puerto Rico
(“PR Producers”). PR Producers are subject to the imposition of administrative and criminal penalties if they practice the profession without a license and without being active members of
COPEP. 15 L.P.R.A. § 2019. Producers of public events not established in Puerto Rico (“non-PR
Producers”) are permitted to practice the profession in Puerto Rico provided they either obtain the license and become members of COPEP, or they become associated with a PR Producer that is both licensed and a member of COPEP. Should a PR Producer seek to practice the profession in
Puerto Rico without having a license or becoming a member of COPEP, they do not have the option of associating with other PR Producers with a license and that are members of COPEP. 15 L.P.R.A.
§ 2012.
During the time Plaintiff was a member of COPEP, Plaintiff disagreed with the manner the
COPEP handled a dispute Plaintiff had with another member and she decided to discontinue her membership in COPEP. Since then, Plaintiff is no longer directly practicing the profession of public performance promoter, but rather she “has participated as an investor in events produced by other producers who are duly admitted as members of COPEP.” Docket No. 5, ¶ 47. Two such events include “a December 2011 concert of Pequeños Gigantes and a friendly soccer match between the
Puerto Rico Team and the 2010 FIFA World Cup Champions, the Spanish Team, in August 2012.”
(Italics in original). Docket No. 5, ¶ 48.
1 Persons desiring to practice the profession of public performance promoters are required to obtain a license and be registered in the Registry of Public Performance Promoters pursuant to the Public Performance Promoter Act, Law 182 of September 3, 1996, 15 L.P.R.A. §§ 2001 -2007. The licenses are issued by the Public Performance Promoters Services Office, an office created within the Puerto Rico Department of Treasury – the government agency responsible for regulating the profession. 15 L.P.R.A. § 2006. Further, public performance producers holding a license pursuant to Law 182 are required to become members of the COPEP pursuant to the COPEP Act. 15 L.P.R.A. § 2012.
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After Plaintiff’s participation in the referenced events, COPEP and its officers began an investigation to determine if there were any violations to Law 182 or the COPEP Act. Plaintiff further avers that on December of 2011, COPEP referred the investigation of Plaintiff to the Departments of
Treasury and Justice with intent to subject Plaintiff to administrative and criminal prosecution.
Plaintiff categorizes COPEP’s investigations and referrals as “selective prosecution” because
COPEP focused on Plaintiff’s activities regarding the December 2011 concert and the August 2012 soccer game, while overlooking the activities of other producers that deserved investigation by
COPEP. Docket No. 5, ¶ 50. Other than a conclusory allegation as to the selective prosecution,
Plaintiff proffers no additional information of the alleged investigations that were overlooked or the activities that would merit investigation by COPEP.
Plaintiff accuses co-defendants Mojena, TM Entertainment, Mellado and Zapata of conspiring against her “for the sole purpose of monopolizing the business of large scale public performances” (Docket No. 5, ¶ 60). Plaintiff’s basis for this allegation is that these defendants “are
[also] engaged in the business of public performance productions,” Docket No. 5, ¶ 57, and that as a result of the “combination and conspiracy” of COPEP, Mojena, TM Entertainment, Mellado and
Zapata, Plaintiff’s “business volume has been considerably reduced, while the business of defendants Zapata, Mojena, TM Entertainment, Inc., Mellado [and other unknown persons] has greatly increased.” Docket No. 5, ¶ 62.
Plaintiff avers that co-defendants COPEP, Zapata, Mojena, TM Entertainment, Mellado and other unknown persons “have made public statements about [Plaintiff] which are defamatory.”
Docket No. 5, ¶ 63. As to Mojena, Plaintiff specifically alleges that while Mojena addressed the 2012
COPEP Assembly, he stated that Plaintiff defrauded the Government during the production of the soccer event of December 2012. Plaintiff also states that Mojena publicly accused Plaintiff of conspiring with another producer to cause damages onto COPEP and that such conspiracy led to the filing of a lawsuit in state court. Lastly, Plaintiff avers that Mojena “used his access to the media, including his television programs[,] to spread rumors and false information about [Plaintiff].” Docket
No. 5, ¶¶ 64 thru 66.
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As to Zapata, Plaintiff asserts that he “verbalized defamatory statements regarding [Plaintiff] in front of an audience, of mostly college students, in Universidad del Sagrado Corazón […] accusing her of acting in violation of state laws.” (Italics in original). Docket No. 5, ¶ 67. Plaintiff also states that both Zapata and Mellado sent email messages to a long-standing client of Plaintiff “to inform them that [Plaintiff] was not a member of COPEP, and therefore [that] it would not be advisable to be in business with her.” Docket No. 5, ¶ 71. Plaintiff claims that as a result of these messages, her client ended their business relationship “in favor of one of Mellado’s companies.”
Docket No. 5, ¶ 72.
Plaintiff filed the instant complaint challenging the constitutionality of the COPEP Act and requesting declaratory judgment and injunctive relief enjoining enforcement of the COPEP Act.
Plaintiff also seeks damages for being subjected to monopolistic and anti-competitive acts, defamation, selective prosecution, and tortious interference with a contract with at least one client.
The named defendants requested dismissal of the complaint and opposed Plaintiff’s request for injunctive relief on various grounds, including lack of standing to make a constitutional challenge of a state statute and failure to plead a cause of action under the plausibility standards of Twombly and Iqbal.2
II. INJUNCTIVE RELIEF
The First Circuit uses a quadripartite test for determining whether litigants are entitled to preliminary injunction redress. Under this framework, trial courts must consider (1) the likelihood of success on the merits; (2) the potential for irreparable harm if the injunction is denied; (3) the balance of relevant impositions, i.e., the hardship to the nonmovant if enjoined as contrasted with the hardship to the movant if no injunction issues; and (4) the effect (if any) of the court’s ruling on the public interest. Swarovski Aktiengesellschaft v. Building No. 19, Inc., 704 F.3d 44, 48 (1st Cir. 2013)
(citing United States v. Weikert, 504 F.3d 1, 5 (1st Cir. 2007). See also Charlesbank Equity Fund II,
Ltd. P'ship v. Blinds To Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004); Cohen v. Brown University, 991
2 Bell Atlantic v. Twombly, 550 U.S. 544 (2007); Ashcroft v. Iqbal, 556 U.S. 662 (2009).
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F.2d 888, 902 (1st Cir. 1993); Narragansett Indian Tribe v. Guilbert, 934 F.2d 4, 5 (1st Cir. 1991);
Camel Hair and Cashmere Institute of America, Inc. v. Associated Dry Goods Corp., 799 F.2d 6, 12
(1st Cir. 1986). All factors in this quadripartite test are important, however the First Circuit has been adamant that federal courts keep in mind that “‘the sine qua non of this four-part inquiry is likelihood of success on the merits: if the moving party cannot demonstrate that he is likely to succeed in his quest, the remaining factors become matters of idle curiosity.’” Sindicato Puertorriqueno de
Trabajadores v. Fortuno, 699 F.3d 1, 10 (1st Cir. 2012) (quoting New Comm Wireless Servs., Inc. v.
SprintCom, Inc., 287 F.3d 1, 9 (1st Cir. 2002). That is, likelihood of success is the touchstone of the preliminary injunction inquiry. See Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 16
(1st Cir. 1996); Weaver v. Henderson, 984 F.2d 11, 12 (1st Cir. 1993). “To demonstrate likelihood of success on the merits, plaintiffs must show ‘more than mere possibility’ of success—rather, they must establish a ‘strong likelihood’ that they will ultimately prevail.” Sindicato Puertorriqueno de
Trabajadores, supra (quoting Respect Maine PAC v. McKee, 622 F.3d 13, 15 (1st Cir. 2010)).
Thus, to embark on the analysis for the instant request for injunctive relief, the Court must first analyze Plaintiff’s causes of action in the merits to determine if Plaintiff met her burden of establishing a strong likelihood that she would prevail. If the Court concludes that Plaintiff meets this burden, then the Court can proceed with its analysis of the three remaining elements of the test.
Should the Court conclude that Plaintiff failed to meet the initial burden, the Court need not continue the quadripartite test and must deny Plaintiff’s request for injunctive relief.
A. Likelihood of Success
1. First Cause: Violation of the Dormant Foreign Commerce Clause
The Constitution provides Congress the authority “[t]o regulate Commerce with foreign
Nations, and among the several States.” U.S. Const. art. I, § 8, cl. 3. This affirmative grant of power has a negative aspect, known as the dormant Commerce Clause. See Grant's Dairy-Maine, LLC v.
Commissioner of Maine Dep't of Agric., Food & Rural Resources, 232 F.3d 8, 18 (1st Cir. 2000).
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The dormant Commerce Clause and its doctrinal accouterments apply to Puerto Rico as though
Puerto Rico were a state. Walgreen Co. v. Rullan, 405 F.3d 50, 59 (1st Cir. 2005).
In general, the dormant Commerce Clause “prevents state and local governments from impeding the free flow of goods from one state to another.” Houlton Citizens' Coalition v. Town of
Houlton, 175 F.3d 178, 184 (1st Cir. 1999). As such, it “prohibits protectionist state regulation designed to benefit in-state economic interests by burdening out-of-state competitors.” Grant's
Dairy, 232 F.3d at 18. Discrimination under the Commerce Clause “means differential treatment of in-state and out-of-state economic interests that benefits the former and burdens the latter,” as opposed to state laws that “regulate[ ] evenhandedly with only incidental effects on interstate commerce,” Oregon Waste Systems, Inc. v. Department of Environmental Quality of State of Or.,
511 U.S. 93, 99 (1994) (internal quotation marks omitted). Under the dormant Commerce Clause, if a state law has either the purpose or effect of significantly favoring in-state commercial interests over out-of-state interests, the law will “routinely” be invalidated “unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism.” Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184 (1st Cir. 1999) (quoting West Lynn Creamery, Inc. v. Healy, 512 U.S.
186, 192-93 (1994)). If the state law regulates in-state and out-of-state interests evenhandedly, the statute will be upheld “unless the burden imposed on [interstate] commerce is clearly excessive in relation to the putative local benefits.” Pike v. Bruce Church, Inc., 397 U.S. 137, 142 (1970).
Plaintiffs bear the initial burden of showing discrimination (i.e., that the statute in question favors in-state commercial interests over out-of-state interests). See Cherry Hill Vineyard LLC v.
Baldacci, 505 F.3d 28, 33 (1st Cir. 2007) (citing Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)). If plaintiffs meet their burden, then “a discriminatory law is virtually per se invalid ... and will survive only if it advances a legitimate local purpose that cannot be adequately served by reasonable non- discriminatory alternatives.” Dep't of Revenue v. Davis, 553 U.S. 328 (2008) (Internal quotation marks omitted). In this respect, the state bears the burden of showing legitimate local purposes and the lack of non-discriminatory alternatives. Discriminatory state laws rarely satisfy this exacting standard. See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S. 564, 581-82 (1997).
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In the instant case, Plaintiff, a PR Producer, attacks the differential treatment granted to non-
PR Producers wanting to practice the profession in Puerto Rico. Plaintiff alleges that the differential treatment lies in the imposition of different requirements for practicing the profession to non-PR
Producers than those imposed on PR Producers. Non-PR Producers may practice the profession in
Puerto Rico if they: (1) obtain a license and become members of COPEP, or (2) associate with a licensed PR Producer who is also a member of the COPEP. See 15 L.P.R.A. §2015(c). In contrast,
PR Producers have no option if they want to practice the profession in Puerto Rico – they must be licensed and members of the COPEP. Id. Otherwise, producers may be subject to the imposition of penalties.
Under this framework which favors non-PR Producers and burdens persons established in the regulating jurisdiction, the Court fails to see a protectionist regulation aggravating the Commerce
Clause. The framework established by the COPEP Act does not appear to be protectionist. Thus,
Plaintiff failed to meet the initial burden of showing discrimination favoring those who operate within the state, constituting a violation of the dormant Commerce Clause.
2. Second Cause: Violations of Plaintiff’s Rights Secured Under the First and Fourteenth Amendments
Required membership on professional organizations as a manner of state regulation over the practice of a profession has been historically challenged in the context of labor unions and state bar associations, not so much as to other state-regulated professions. Thus, the Court seeks guidance in the caselaw related to challenges of mandatory state bar associations and labor unions to analyze the merits of Plaintiff’s second cause of action.
In general, it is well settled by federal courts that conditioning the practice of law on membership in a state bar association does not itself violate the First Amendment. See Keller v.
State Bar, 496 U.S. 1, 7-9 (1990); Lathrop v. Donohue, 367 U.S. 820, 842-43 (1961). The courts have reasoned that the state’s interest in “regulating the legal profession and improving the quality of legal services” justifies compelled membership in an integrated bar. Keller, 496 U.S. at 13. Federal courts have also upheld the validity of imposing mandatory union membership based on the national
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interest in maintaining peaceful labor relations. See Abood v. Detroit Bd. of Educ., 431 U.S. 209,
222-23 (1977). However, the Court has recognized there is a constitutionally protected right to refuse to associate, see Abood, 431 U.S. at 233-36 and Roberts v. United States Jaycees, 468 U.S.
609, 623 (1984), which is implicated when the state compels an employee or a professional to belong to a union or professional association. See Romero v. Colegio De Abogados De Puerto
Rico, 204 F.3d 291, 296-97 (1st Cir. 2000) (citing Ellis v. Brotherhood of Ry., Airline and S.S. Clerks,
466 U.S. 435, 455 (1984)). This intrusion by the state is justified only by strong public interests.
Romero v. Colegio, 204 F.3d at 301.
In Puerto Rico, state and federal courts alike have upheld the constitutionality of Puerto Rico statutes imposing mandatory membership of professional organizations, specifically the Puerto Rico integrated bar association and labor unions. In the context of the integrated bar association, the
Frist Circuit held that, despite its impact upon the First Amendment rights, the state has interest in regulating the legal profession and improving the quality of the legal services offered to the public.
See, e.g. Romany v. Colegio de Abogados de Puerto Rico, 742 F.2d 32 (1st Cir. 1984) (commenting that the Puerto Rico Supreme Court upheld compulsory bar membership in Colegio v. Schneider,
112 D.P.R. 540 (1982) and explaining that “[b]ar associations in civil law jurisdictions [such as
Puerto Rico] […] have ‘from time immemorial’ enjoyed both compulsory membership and a “primarily political role.”). See also Schneider v. Colegio de Abogados de Puerto Rico, 917 F.2d 620 (1st Cir.
1990); Romero v. Colegio De Abogados De Puerto Rico, 204 F.3d 291 (1st Cir. 2000). “[I]n both the union and bar settings, ‘the constitutionally protected right to refuse to associate’ must bend to the state’s compelling interest, but it remains a barrier to coerced association unrelated to the state's demonstrated needs.” Acevedo Delgado v. Rivera, 292 F.3d 37, 41 (1st Cir. 2002) (citing Romero v.
Colegio De Abogados De Puerto Rico, 204 F.3d 291, 297 (1st Cir. 2000)).
Based on the above, whether it is an interest of regulating the legal profession which has a significant impact on society as a whole, an interest in maintaining peaceful labor relations, or other legitimate reason that may fall within those limits, courts have found that the states’ intrusion on its citizens’ First Amendment rights to associate or not associate with an organization is justified.
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Therefore, the Court starts its analysis of Plaintiff’s second cause of action from the proposition that the Government constitutionally may condition the right to practice professions in Puerto Rico, including public performance producers, by requiring mandatory membership in the organization created by statute to regulate the profession and to perform other functions associated with such profession. See Schneider v. Colegio, 917 F.2d at note 3.
In the instant case, Plaintiff attacks the mandatory membership requirement on public performance producers of Article 6 of the COPEP Act, 15 L.P.R.A. § 2015. Plaintiff’s sole claim is that the imposition constitutes a violation of her right not to associate with an organization. Based on
Plaintiff’s claim of First Amendment violation, which the courts have held must blend to the states’ compelling interest, this Court’s analysis must focus on the Government’s stated compelling interest and whether it falls within the boundaries already validated by the courts. Should the Court find that the Government’s stated interest falls within such boundaries, the Court must determine that the
Government is justified in imposing mandatory membership onto public performance producers.
The Government stated a need to regulate the profession of public performance producers to protect performance artists and producers alike from unscrupulous and inexperienced persons whose purpose is to “yield[] a quick profit and then leave the market,” thereby “discredit[ing] the industry.”
See Legislative Intent of the COPEP Act, Docket No. 5-1. According to the legislative intent, the membership requirement seeks to “give uniformity to th[e] practice and create a mechanism for monitoring the business practices of public performance promoters and producers.” Id. (Emphasis ours). The Court is of the opinion that the Government met its burden of establishing a compelling interest in imposing mandatory membership as a condition to practicing the profession of public performance producers, which falls within the state interests (i.e., business practices as opposed to
First Amendment expressions and practices) that have already been validated, and which Plaintiff has not plead are invalid. Because the Government has a legitimate public interest in regulating the profession of public performance producers. Consequently, the Court finds that the Government is justified in imposing mandatory membership requirement for practicing the profession of public
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performance producer. Thus, Plaintiff fails to aver a meritorious cause of action under the First and
Fourteenth Amendment.
3. Third Cause: Overbreadth or Vagueness3
In evaluating a due process vagueness challenge to a statute affecting First Amendment freedoms, like in the instant case, federal courts must “ensure that persons of ordinary intelligence have ‘fair warning’ of what [the] law prohibits,” that the law “provide[s] explicit standards for those who apply” it, and that the law “avoid[s] chilling the exercise of First Amendment rights.” National
Organization for Marriage, Inc. v. McKee, 649 F.3d 34, 62 (quoting Grayned v. City of Rockford, 408
U.S. 104, 108-09 (1972) (internal quotation mark omitted)). Precision is not expected; “[t]he mere fact that a regulation requires interpretation does not make it vague.” Id. (quoting Ridley v. Mass.
Bay Transp. Auth., 390 F.3d 65, 93 (1st Cir. 2004)); see also Holder v. Humanitarian Law Project,
130 S.Ct. 2705, 2719 (2010) (noting that, when a law burdens First Amendment rights, “a more stringent vagueness test should apply ... [b]ut perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity” (quoting Hoffman Estates v. Flipside,
Hoffman Estates, Inc., 455 U.S. 489, 499 (1982); United States v. Williams, 553 U.S. 285, 304
(2008) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989))). The test is whether the statute “prohibits ... an act in terms so uncertain that persons of average intelligence would have no choice but to guess at its meaning and modes of application.” National Organization for Marriage,
Inc. v. McKee, 649 F.3d at 62 (quoting United States v. Councilman, 418 F.3d 67, 84 (1st Cir. 2005)
(en banc)) (internal quotation marks omitted).
The Court understands that Plaintiff’s vagueness attack constitutes a facial challenge. But first, the Court must resolve Defendants’ contention that Plaintiff lacks standing. Defendants aver
3 Vagueness and overbreadth analysis are not entirely separable but they derive from different policies and look to different effects. A vagueness inquiry focuses on whether a law states its proscriptions in terms sufficiently indefinite that persons of reasonable intelligence “must necessarily guess at its meaning”. Broadrick v. Oklahoma, 413 U.S. 601, 607 (1973) (quoting Connally v. General Const. Co., 269 U.S. 385, 391 (1926)). But an overbreadth analysis looks to whether a law “sweeps within its ambit (protected) activities” as well as unprotected ones, Thornhill v. Alabama, 310 U.S. 88, 97 (1940). Therefore, because Plaintiff attacks the statute for lack of a definition of the proscribed activity, the Court will address Plaintiff’s claims under a vagueness analysis as it is more appropriate. See Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d 1115, note 9 (1st Cir. 1981).
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that Plaintiff has no standing to make a constitutional facial challenge on the COPEP Act because she made no allegations of being “subject to [the] criminal penalties or fines as a result of application of the [COPEP] Act,” Docket No. 42, page 10. Defendants also allege that Plaintiff lacks standing in her “constitutional transgression” because “[a]s a Puerto Rico resident[,] the plaintiff cannot be considered a ‘producer not established in Puerto Rico’ as defined in the COPEP Act” and because
“her rights and interests are not at stake,” Docket No. 40, page 6. Defendants seem to contend that
Plaintiff would have standing to a facial challenge of the COPEP Act only if she were considered a non-PR Producer and only if she was already fined. The Court disagrees with Defendants in this respect.
The general inquiry regarding standing of any plaintiff focuses on “whether the litigant is entitled to have the court decide the merits of the dispute or of particular issues;” it involves both
“constitutional limitations on federal-court jurisdiction and prudential limitations on its exercise.”
Warth v. Seldin, 422 U.S. 490, 498 (1975). The constitutional constraints are designed to ensure compliance with Article III’s “case or controversy” requirement; they require that the plaintiff allege a sufficient personal stake in the outcome of the controversy. See id. For such purposes, the
Supreme Court has outlined a three-part test for Article III standing to ensure that these constitutional limits are observed. “First, the plaintiff must have suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical[.]” See Council Of Ins. Agents & Brokers v. Juarbe-
Jimenez, 443 F.3d 103, 107-108 (1st Cir. 2006) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (quoting Whitmore v. Arkansas, 495 U.S. 149, 155 (1990))). “Second, there must be a causal connection between the injury and the conduct complained of.” Id. Thus, the injury must be traceable to the defendant’s challenged action rather than to some third party’s independent action.
See id. And third, it must be likely that a favorable decision will redress the injury. Id.
Generally, allegations of abstract injury are insufficient to satisfy the first prong of the Article
III standing test. But, a litigant bringing a First Amendment challenge to the face of a statute need not actually violate the statute or suffer the prescribed penalty in order to establish an injury in fact.
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See Ramirez v. Sanchez Ramos, 438 F.3d 92, 98 (1st Cir. 2006) (citing Steffel v. Thompson, 415
U.S. 452, 459 (1974)). The “conflict between state officials empowered to enforce a law and private parties subject to prosecution under that law is a classic ‘case’ or ‘controversy’ within the meaning of
Art. III.” Diamond v. Charles, 476 U.S. 54, 64 (1986).
In the instant case, Plaintiff brought a facial challenge to the COPEP Act for the imposition of criminal penalties for violations of the statute’s membership requirement.4 Specifically, Plaintiff attacks Article 10 of the COPEP Act, 15 L.P.R.A. § 2019, and the statute’s lack of a definition of the proscribed activity. The challenged provision reads as follows:
§ 2019 Penalties. Any person who practices the profession of public performance producer in Puerto Rico, without being a College member or during the length of the suspension of the payment of the fee, or after his/her license has been revoked, practices the profession as such, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than five hundred dollars ($500) nor of more than one thousand dollars ($1,000) for every violation incurred.
In compliance with the provisions of § 2015(c) of this title, every producer who is not established in Puerto Rico who works as the promoter or producer of any public performance in Puerto Rico, without being duly associated with a producer member of the College pursuant to this chapter to hold said public performance or who is established in a territory or state of the United States and has not become associated with a producer member of the College, or if he/she is not associated to a College member nor has become a College member or has not obtain a license according to the requirements established by this chapter and the regulations adopted by the College, shall also be subject to an administrative fine to be imposed by OSPEP of not more than ten thousand dollars ($10,000) and any public performance producer license granted to him/her may be suspended or revoked. Said sanction may also be imposed to the administration of facilities belonging to the government or to the administrator of the facility individually who allows public performance producers who are not College members nor are associated with a producers members of the College, or who has not obtained the license issued by the College to hold public performances.
Any collections or proceeds resulting from the imposition of the above fines shall be covered into the General Fund. (Emphasis ours).
From a simple reading of the section in question and from the above-cited guidance, the
Court concludes that persons that are classified as either PR Producers or non-PR Producers have standing to raise a facial challenge on Section 10 of the COPEP Act despite not having been imposed the penalties because persons meeting such categories would be subject to the imposition
4 Plaintiff’s constitutional challenge is also based on alleged differential treatment of public performance producers based on their country of residence, which the Court addressed in Section II.A.1. “First Cause: Violation of the Dormant Foreign Commerce Clause,” ante.
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of penalties. Thus, the Court finds that Plaintiff, an admitted PR Producer (Docket No. 5, ¶¶ 37 and
39), has standing to raise a facial challenge of the COPEP Act.
As to the vagueness attack, Plaintiff strives to persuade the Court that the COPEP Act is vague in that it does not define what it means to “practice the profession of public performance producer in Puerto Rico,” the activity which, if practiced without a license and membership in
COPEP, subjects the person to the imposition of criminal or administrative penalties. Docket No. 5,
¶ 91. The Court agrees with Plaintiff in that the COPEP Act does not have such a definition.
However, such shortage does not render the COPEP Act vague. Section 10 of the COPEP Act, as well as various other sections in the statue, makes reference to the licensing requirement of Law 82, a requirement which is concurrent with the membership requirement of the COPEP Act. Law 82 includes a clear and concise definition of “public performance producer” and of the activities that are construed as producing a public performance, as follows:
2001. Definitions
(…)
(f) Public performance promoter.-- Natural [or] juridical person, whether local or foreign, who promotes or organizes a public performance to be held, which entails the search for a location and the entering into contracts, and is in charge of its administrative and advertising phases.
15 L.P.R.A. § 2001(f). Plaintiff, by her own admission, has practiced as a public performance producer for various decades (Docket No. 5, ¶ 37-38); she has supported and lobbied in favor of the enactment of the COPEP Act (Id. at ¶42); and she was a member of COPEP before filing the instant complaint (Id. at ¶ 46); the Court can reasonably conclude that Plaintiff is fully aware of what it means to “practice the profession of public performance producer in Puerto Rico” as such term is used in Law 82 and the COPEP Act and that she had a fair warning of the activities that may lead to the imposition of the fines of Section 10 of the COPEP Act. For these reasons, Plaintiff’s attack of the COPEP Act on vagueness grounds must fail.
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4. Fourth Cause: Monopolistic and Anti-Competitive Acts
Plaintiff argues that co-defendants Mojena, TM Entertainment, Zapata and Mellado conspired against her “for the sole purpose of monopolizing the business of large scale public performances” in Puerto Rico (Docket No. 5, ¶ 60), but fails to state the statutory provisions – whether the Sherman Act, 15 U.S.C. §§ 1, et. seq. or the Puerto Rico’s antitrust law, 10 L.P.R.A. §§
257 et. seq. – which the co-defendants allegedly violated. However, because the Puerto Rico antitrust law “mirrors the language of [the pertinent sections] of Sherman Act,” Ticket Center, Inc. v.
Banco Popular de Puerto Rico, 613 F.Supp.2d 162, 180 (D.P.R. 2008) (citing Podiatrist Ass'n v. La
Cruz Azul De P.R., Inc., 332 F.3d 6, 16 (1st Cir. 2003) and Coastal Fuels of P.R., Inc. v. Caribbean
Petroleum Corp., 79 F.3d 182, 195 (1st Cir. 1996), the Court will limit its analysis on the elements of a claim under the Sherman Act.
To successfully prove a monopolization claim under the Sherman Act, a plaintiff must show that: (1) the defendant has monopoly power, and (2) the defendant has engaged in “impermissible exclusionary practices with the design or effect of protecting or enhancing its monopoly position.”
Coastal Fuels of P.R., Inc., 79 F.3d at 195. To succeed on an attempted monopolization claim, a plaintiff must show that the defendant engaged in (1) predatory or anti-competitive conduct (2) with a specific intent to monopolize, and (3) a dangerous probability of achieving monopoly power. See
Spectrum Sports v. McQuillan, 506 U.S. 447, 457 (1993). In determining whether a party has monopoly power or could acquire monopoly power in a given market, it is generally necessary to consider “the relevant market and the defendant’s ability to lessen or destroy competition in that market.” Coastal Fuels of P.R., Inc., 79 F.3d at 196 (citing Spectrum Sports, 506 U.S. at 457). It is the plaintiff's burden to define the relevant geographic market and product market and “present sufficient evidence from which a reasonable jury could find the existence of the proposed relevant market.” Coastal Fuels of P.R., Inc., 79 F.3d at 196. Determining market power is only possible once the relevant market has been defined. Id. The Supreme Court has cautioned that “intent to monopolize ... is something more than an intent to compete vigorously.” Spectrum Sports, 506 U.S. at 459. Moreover, “the federal antitrust laws ... do not create a federal law of unfair competition or
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purport to afford remedies for all torts committed by or against persons engaged in interstate commerce.” Brooke Group v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 225 (1993).
In the instant case, Plaintiff failed to prove that Defendants engaged in impermissible exclusionary practices protecting or enhancing their alleged monopoly position. Although Plaintiff made allegations to define the relevant market, Plaintiff simply averred conclusory allegations that the named defendants engaged in antitrust violations and that her business profits have diminished considerably as opposed to the increased profits of Defendants. Plaintiff obviates that, even if the
Court were to conclude that the named defendants excluded or prevented Plaintiff from practicing her profession, Plaintiff’s exclusion from practicing the profession in Puerto Rico was not impermissible, as it was Plaintiff herself who “opted not to be a member of COPEP.” Thus, Plaintiff’s claim under the Sherman Act is not meritorious and must fail.
5. Fifth Cause: Defamation
Under Puerto Rico law, the tort of defamation can be either intentional or negligent, depending on whether the defamed is a private or public figure, and can be made in the form of slander or libel. See generally, Ojeda v. El Vocero de P.R., 137 D.P.R. 315 (1994). “Slander is a false and unprivileged publication other than libel, which imputes to any person the commission of a crime, or tends directly to injure him in respect to his office, profession, trade or business, or which by natural consequences causes actual damages.” 32 L.P.R.A. § 3143. See also Ojeda, 137
D.P.R. at 326. Libel is defined as “the malicious defamation of a person made public by writing, printing, sign, picture, representation, effigy, or other mechanical mode of publication tending to subject him to public hatred or contempt, or to deprive him of the benefit of public confidence and social intercourse, or to injure him in his business, or in any other way to throw discredit, contempt or dishonor upon him.” 32 L.P.R.A. § 3142. See also Sociedad de Gananciales v. El Vocero de P.R.,
135 D.P.R. 122, 126 (1994). Whether slander or libel, the sources of protection against defamation in Puerto Rico law are three: the Libel and Slander Act of 1902, 32 L.P.R.A. § 3242, et. seq.; Article
1802 of the Puerto Rico Civil Code, 33 L.P.R.A. § 5141; and Art. II, sec. 8 of the Puerto Rico
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Constitution. See Aponte v. Calderón, 284 F.3d 184, 197 (2002), Acevedo v. Western Digital
Caribe, Inc., 140 D.P.R. 452, 460 (1996), Ojeda, 137 D.P.R. 326. The Constitution of Puerto Rico serves as the underlying basis for defamation claims, which are litigated in accordance with the provisions of both the Libel and Slander Act and Article 1802 of the Civil Code. Acevedo, supra.
To prevail on a defamation action under Puerto Rico law, a plaintiff must prove: (1) that the statement was false; (2) in the case of a private figure, that the publication was negligently made; (3) in the case of a public figure, that defendant acted with actual malice; and (4) that he or she suffered real damages. See Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 98 (1st Cir. 1996); San
Juan Star v. Casiano Communications, Inc., 85 F.Supp.2d 89, (D.P.R. 2000). A “public figure” is a person that has “assumed roles of especial prominence in the affairs of society” or “thrust themselves into the forefront of particular public controversies in order to influence the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). An individual who achieves “pervasive fame or notoriety” is deemed a public figure for all purposes. Id. at 351. “Actual malice” is defined as publication with the knowledge that the information was false or with reckless disregard for the truthfulness of the information. See New York Times Co. v. Sullivan, 376 U.S. 254
(1964). Plaintiffs must plead objective facts that “provide evidence of negligence, motive, and intent such that an accumulation of [such] evidence and appropriate inferences supports the existence of actual malice.” Bose Corp. v. Consumers Union of U.S, Inc., 692 F.2d 189, 196 (1st Cir. 1982). In the instant case, Plaintiff alleged to being a public figure (Docket No. 5, ¶102). Accordingly, Plaintiff must show actual malice on the part of Defendants, which is a stringent hurdle to overcome and is usually accomplished after intensive discovery.
As to co-defendant Mojena, Plaintiff alleges that he stated before the COPEP Assembly of
2012 that Plaintiff had defrauded the Government in the production of the La Roja soccer event of
December 2012; that Mojena had accused Plaintiff of conspiracy to cause damages onto COPEP; and that Mojena used his access to the media to spread rumors and false information about Plaintiff.
Docket No. 5, ¶¶ 63 - 66. Plaintiff does not proffer evidence as to the rumors or false information that Mojena was allegedly spreading about her, the times that such rumors reached the media or an
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identification of media through which the rumors were spread. Plaintiff also failed to prove that the statements Mojena allegedly made were false; that Mojena made all such statements with knowledge of their falsehood or with reckless disregard for the truth; and that Plaintiff suffered real damages as a consequence of Mojena’s statements. For these reasons, Plaintiff’s claim of defamation against Mojena is not likely to succeed.
The defamation by Zapata allegedly occurred before an audience of college students when
Zapata accused Plaintiff of actin in violation of state laws. Plaintiff failed to allege the context in which the statements were allegedly made, or whether the statements were related to violations of the COPEP Act or any other statute. In any case, Plaintiff’s cause of action against Zapata is not likely to succeed because Plaintiff failed to allege sufficient factual assertions regarding the actual malice to support a defamation claim against Zapata for his alleged expressions before the
Universidad de Sagrado Corazón.
Lastly, Plaintiff claims that both Zapata and Mellado sent email messages to Televisa, a long-standing client of Plaintiff, “to inform them that [Plaintiff] was not a member of COPEP, and therefore [that] it would not be advisable to be in business with her.” Docket No. 5 ¶ 71. Plaintiff’s attempt to have the Court render this statement as defamatory must also fail. The first portion of the statement is an assertion of a fact: Plaintiff is not a member of the COPEP. The remaining portion of the statement should also not be considered as defamatory – the Court understands that the statement constitutes an opinion of two officials of the COPEP speaking under their official capacities as to their advice given Plaintiff’s factual noncompliance with the COPEP Act. Again,
Plaintiff failed to prove that the statements made by these defendants were false; that they made all such statements with knowledge of their falsehood or with reckless disregard for the truth; and that
Plaintiff suffered real damages as a consequence of Zapata and Mellado’s emails to Televisa. For such reason, Plaintiff’s claim for defamation against Zapata and Mellado is not likely to succeed.
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6. Sixth Cause: Selective Prosecution and Tortious Interference with a Contract
“The essence of a selective prosecution claim is that a prosecutor [or another public officer empowers to make investigations and bring charges against persons] has pursued a case for a constitutionally impermissible reason, such as the defendant’s race, religion, or other characteristic cognizable under equal protection principles.” Martex Farms, S.E. v. U.S. E.P.A., 559 F.3d 29, 32
(1st Cir. 2009) (citing United States v. Lewis, 517 F.3d 20, 25 (1st Cir. 2008)). Plaintiff supports her claim of selective prosecution alleging that COPEP referred her for investigation to the Department of Justice and the Department of Treasury while overlooking the activities of other producers that deserved investigation by COPEP. Docket No. 5, ¶ 50. Nonetheless, Plaintiff fails to make even an allegation that COPEP used a constitutionally impermissible ground as the basis of the referral for investigation of Plaintiff’s activities. Therefore, Plaintiff’s claim in this regard is without legal basis and necessarily fails. See Martex Farms, Id. (reaching the same conclusion when the plaintiff alleged the E.P.A. engaged in selective prosecution because they investigated the plaintiff’s use of pesticides in their farming operations in Puerto Rico but “left ‘untouched the rest of Puerto Rico’s agricultural community’” without alleging an impermissible reason for the investigation.)
To establish a cause of action for tortious interference with a contractual relationship under
Puerto Rico law a plaintiff must show “(a) the existence of a contract; (b) that the defendant had prior knowledge of the contract; (c) that the plaintiff suffered damages; and (d) that a causal relationship exists between defendants’ actions interfering with the contract and the damages suffered by plaintiff.” MVM Inc. v. Rodriguez, 568 F.Supp.2d 158, 171 (D.P.R. 2008) (citing Jusino Figueroa v.
Walgreen’s of San Patricio, Inc., 155 D.P.R. 560, 575–76 (2001)). See also Leopoldo Fontanillas,
Inc. v. Luis Ayala Colon Sucesores, Inc., 283 F.Supp.2d 579, 588 (D.P.R. 2003) (citing General
Office Products Corp. v. A.M Capen's Sons, Inc., 115 D.P.R. 553, 558–559, 115 P.R. Offic. Trans.
727, 734 (1984)). Moreover, “to be liable, a defendant must have ‘acted tortiously, with knowledge of the contract’s existence.’” New Comm Wireless Servs. v. Sprintcom, Inc., 287 F.3d 1, 10 (1st Cir.
2002) (quoting General Office Products Corp., 115 D.P.R. at 557, 115 P.R. Offic. Trans. at 734).
This means that “the plaintiff must show that the defendant intended to interfere with the contract,
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knowing that this interference would cause injury to the plaintiff.” Id. However, liability for tortious interference does not lie “against a defendant when the underlying prejudicial contract has no fixed period of time. In other words, ... the third person interfering with said contractual relation will not be held liable in an action for damages for tortious interference if the contractual relation is terminable at the parties’ will.” Leopoldo Fontanillas, Inc. v. Luis Ayala Colon Sucesores, Inc., 283 F.Supp.2d at
588 (quoting A.M. Capen’s Co., v. Am. Trading and Prod. Corp., 200 F.Supp.2d 34, 48 (D.P.R.
2002) (internal quotation marks omitted).
Plaintiff avers that co-defendants Mellado and Zapata interfered with a contract she had with with Televisa, a client with whom she had a business relationship for over 20 years. (Docket No. 5,
¶ 68). Plaintiff claims that Mellado and Zapata sent email messages to Televisa representatives regarding Plaintiff’s noncompliance with the COPEP Act and advising Televisa not to engage in business with Plaintiff, Id. at ¶71, and that “[s]oon after Televisa ended the contract with [Plaintiff]” they entered into a contract with Mellado. Id. at 72. Nonetheless, Plaintiff proffers no evidence that either Mellado or Zapata had prior knowledge of Plaintiff’s contract with Televisa, or the causal relationship between the email messages and Televisa’s decision to end the contractual relationship with Plaintiff. There is no proffer as to the temporal proximity between the email messages and the end of Televisa’s contract, or that the contents of the email messages were in fact the reason for
Televisa’s decision to end a contractual relationship of over 20 years. For these reasons, the Court concludes that Plaintiff’ claim for tortious interference of a contract against Mellado and Zapata is not likely to succeed.
* * * * *
For the reasons stated above, the Court concludes that Plaintiff has failed to meet the initial burden of demonstrating likelihood of success on the merits, “the touchstone of the preliminary injunction inquiry,” Ross-Simons of Warwick, Inc., 102 F.3d at 16, on all six of her causes of action.
The Court’s analysis under the quadripartite test stops here. Accordingly, the Court concludes that
Plaintiffs request for injunctive relief lacks merit and must be denied.
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III. MOTION TO DISMISS
Federal Rule of Civil Procedure 8(a) requires plaintiffs to provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). When addressing a motion to dismiss, “we accept as true all well-pleaded facts in the complaint and draw all reasonable inferences in favor of the plaintiff[].” Gargano v. Liberty Int’l Underwriters, Inc., 572 F.3d
45, 48-49 (1st Cir. 2009). However, under Bell Atlantic v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff must “provide the grounds of his entitlement [with] more than labels and conclusions.” See
Ocasio-Hernandez v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011) (“in order to ‘show’ an entitlement to relief a complaint must contain enough factual material ‘to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).’) (quoting Twombly, 550 U.S. at 555) (citation omitted). A complaint “must contain sufficient factual matter to state a claim to relief that is plausible on its face.” Grajales v. P.R. Ports
Authority, 682 F.3d 40, 44 (1st Cir. 2012). Thus, a plaintiff must, and is now required to, present allegations that “nudge [his] claims across the line from conceivable to plausible” in order to comply with the requirements of Rule 8(a). Id. at 570; see e.g. Ashcroft v. Iqbal, 556 U.S. 662 (2009).
When considering a motion to dismiss, the Court’s inquiry occurs in a two-step process under the current context-based “plausibility” standard established by Twombly, Supra, and Iqbal,
Supra. “Context based” means that a Plaintiff must allege sufficient facts that comply with the basic elements of the cause of action. See Iqbal, 556 U.S. at 671-72 (concluding that plaintiff’s complaint was factually insufficient to substantiate the required elements of a Bivens claim, leaving the complaint with only conclusory statements).
First, the court must sift through the averments in the complaint, separating conclusory legal allegations (which may be disregarded) from allegations of fact (which must be credited). See Morales–Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012). Second, the court must consider whether the winnowed residue of factual allegations gives rise to a plausible claim to relief. Id. “If the factual allegations in the complaint are too meager, vague, or conclusory to remove the possibility of relief from the realm of mere conjecture, the complaint is open to dismissal.” SEC v. Tambone, 597 F.3d 436, 442 (1st Cir. 2010) (en banc).
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Rodriguez-Reyes v. Molina-Rodriguez, 711 F.3d 49, 53 (1st Cir. 2013).
Thus, “[i]n order to survive a motion to dismiss, [a] plaintiff must allege sufficient facts to show that he has a plausible entitlement to relief.” Sanchez v. Pereira-Castillo, 590 F.3d 31, 41 (1st
Cir. 2009). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not ‘show[n]’ ‘that the pleader is entitled to relief.’” Iqbal, 129 S.Ct. at 1950(quoting Fed. R. Civ. P. 8(a)(2)). Furthermore, such inferences must be at least as plausible as any “obvious alternative explanation.” Id. at 1950-51
(citing Twombly, 550 U.S. at 567). “A plaintiff is not entitled to ‘proceed perforce’ by virtue of allegations that merely parrot the elements of the cause of action.” Ocasio-Hernandez, 640 F.3d at
12, (citing Iqbal, 556 U.S. at 680).
The First Circuit has cautioned against equating plausibility with an analysis of the likely success on the merits, affirming that the plausibility standard assumes “pleaded facts to be true and read in a plaintiff’s favor” “even if seemingly incredible.” Sepúlveda-Villarini v. Dep’t of Educ. of P.R.,
628 F.3d 25, 30 (1st Cir. 2010) (citing Twombly, 550 U.S. at 556); Ocasio-Hernandez, 640 F.3d at
12 (citing Iqbal, 129 S.Ct. at 1950); see Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it appears that a recovery is very remote and unlikely.”) (internal quotation marks omitted); see Ocasio-Hernandez, 640 F.3d at 12 (citing Twombly, 550 U.S. at 556) (“[T]he court may not disregard properly pled factual allegations, ‘even if it strikes a savvy judge that actual proof of those facts is improbable.’”). Instead, the First Circuit has emphasized that “[t]he make-or-break standard . . . is that the combined allegations, taken as true, must state a plausible, [but] not a merely conceivable, case for relief.” Sepúlveda-Villarini, 628 F.3d at 29.
However, a complaint that rests on “bald assertions, unsupportable conclusions, periphrastic circumlocutions, and the like” will likely not survive a motion to dismiss. Aulson v. Blanchard, 83
F.3d 1, 3 (1st Cir. 1996); Sánchez v. United States, 671 F.3d 86, 92 (1st Cir. 2012) (“we must credit the plaintiff’s well-pled factual allegations and draw all reasonable inferences in the plaintiff’s favor.”)
(internal quotations omitted). Similarly, unadorned factual assertions as to the elements of the cause of action are inadequate as well. Peñalbert-Rosa v. Fortuno-Burset, 631 F.3d 592 (1st Cir.
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2011). “Specific information, even if not in the form of admissible evidence, would likely be enough at [the motion to dismiss] stage; pure speculation is not.” Id. at 596; see Iqbal, 129 S.Ct. at 1951
(“To be clear, we do not reject [] bald allegations on the ground that they are unrealistic or nonsensical. . . . It is the conclusory nature of [the] allegations, rather than their extravagantly fanciful nature, that disentitles them to the presumption of truth.”); see Mendez Internet Mgmt. Servs. v. Banco Santander de P.R., 621 F.3d 10, 14 (1st Cir. 2010) (The Twombly and Iqbal standards require District Courts to “screen[] out rhetoric masquerading as litigation.”).
Based on the Court’s analysis of the likelihood of success of Plaintiff’s six causes of action, and taking into consideration the First Circuit’s warning not to equate plausibility with an analysis of the likely success of the merits, see Sepúlveda-Villarini v. Dep’t of Educ. of P.R., supra, the Court concludes that Plaintiff has failed to plead plausible causes of action in her first four causes of action
(i.e. violation of the dormant foreign Commerce Clause; Violations of plaintiff’s rights secured under the First and Fourteenth Amendments; overbreadth or vagueness of the COPEP Act; and monopolistic and anti-competitive acts) and as to her claim of selective prosecution. However,
Plaintiff was able to plead a plausible cause of action of defamation against Mojena, Zapata and
Mellado, and a claim of tortuous interference with a contract against Mellado and Zapata. The
Court’s reasoning is based on the First Circuit’s holding that “ [i]t is not necessary to plead facts sufficient to establish a prima facie case at the pleading stage.” Rodriguez-Reyes v. Molina-
Rodriguez, 711 F.3d 49, 54 (1st Cir. 2013) (citing Swierkiewicz v. Sorema, 534 U.S. 506, 512
(2002)).
IV. CONCLUSION
For the reasons stated above, the Court hereby:
a. DENIES Plaintiff’s Motion preliminary injunction (Docket No. 6);
b. GRANTS IN PART AND DENIES IN PART the motion to dismiss filed by
Mellado and Zapata (Docket No. 40). The motion to dismiss is DENIED only as to
Plaintiff’s causes of action for defamation and tortious interference with a contract;
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c. GRANTS the motion to dismiss filed by the College of Public Performance
Producers (Docket No. 42);
d. GRANTS IN PART AND DENIES IN PART the motion to dismiss filed by
Mojena (Docket No. 53). The motion to dismiss is DENIED only as to Plaintiff’s
causes of action for defamation and tortious interference with a contract;
e. GRANTS the motion to dismiss filed by TM Entertainment, Inc. (Docket No.
58);
f. GRANTS the motion to dismiss filed by the Commonwealth of Puerto Rico,
the Secretary of Justice, Secretary of Treasury and the Governor of Puerto Rico
(Docket No. 59).
IT IS SO ORDERED.
In San Juan, Puerto Rico this 30th day of September, 2013.
/s/ Daniel R. Domínguez Senior U.S. District Judge
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